ISLAMABAD: The Supreme Court held that in promotion to a selection post, seniority and merit have to be considered, whereas, a non-selection post is to be filled on the basis of seniority-cum-fitness.

The Supreme Court, on Saturday, released its Second Quarterly Report – 17th December, 2023 to 31st March, 2024 – wherein, brief summary of important cases, decided during this period, has been provided.

The report said that in the “Promotion to a Selection Post” case, the apex court held that in promotion to a selection post, seniority and merit have to be considered, whereas, a non-selection post is to be filled on the basis of seniority-cum-fitness. Hence, a selection post is not to be filled on the basis of seniority alone.

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In “Income Tax Ordinance, 2001”, the Court held that immunity from taxation under the Income Tax Ordinance, 2001, cannot be claimed merely on the basis that the person’s business premises are situated in the Federally Administered Tribal Areas (FATA) but he must also establish that the taxable income was derived therefrom.

In “Distinction Between Trading Liability and Statutory Liability”, the Supreme Court explained the difference between trading liability and statutory liability under the Income Tax Ordinance, 1979. A trading liability is incurred whilst performing a trade, that is the buying and selling of goods and services; and a statutory liability is one created by statute.

Similarly, the apex court also decided cases; “Ex-facto Approval of Notification”, wherein, it held that if the provincial cabinet, which includes the chief minister and ministers, provides ex-post facto approval, the validity of a notification is recognised from the date of its approval, that is, its effect will be prospective, and not retrospective.

In the “Categories of Workmen and Trans-Provincial Establishments” case, the Court held that the Industrial Relations Act, 2012 has created two distinct categories of workmen: the first category includes a person, who is employed in an establishment or an industry for hire or reward, either directly or through a contractor and whether the terms of employment are express or implied; while the latter category restricts the workman in relation to his termination, removal, or dismissal from service in connection with industrial dispute or whose termination, removal, or dismissal was either a consequence of industrial dispute or has led to an industrial dispute. It was also held that in case a workman is terminated, removed, retrenched, discharged, or dismissed from service in a trans-provincial establishment, he would be required to first prove that he fulfills the conditions precedent of being a workman as provided under the Industrial Relations Act, 2012.

In “Standard of Proof Required in Departmental Proceedings”, the apex court held that in a departmental inquiry, the standard of proof is that of “balance of probabilities or preponderance of evidence” and not that of “proof beyond reasonable doubt”, which is required in a criminal trial where the penalties are severe. It was further held that the police force is a disciplined force with the responsibility of maintaining law and public order, therefore, any person who is part of a disciplined force must be a person of integrity.

In “Employees of Canteen Stores Department”, the Court held that the Canteen Stores Department (CSD) is a private commercial organization with independent financial resources and does not perform any function of the government. Therefore, its employees cannot be considered to be government servants or members of the Armed Forces.

The cases decided during this period include Accountability of Judges to continue despite resignation or retirement; Action taken by the Supreme Judicial Council by denying a fair trial; Advisory Jurisdiction of the Supreme Court invoked by the President with regard to the trial of Mr Zulfiqar Ali Bhutto; Conviction of General Pervez Musharraf (retd); Lifetime disqualification of Parliamentarians in interpreting Article 62(1)(f) of the Constitution; Consent of a wife held to be vital for Khula under Muslim family law; Framing of Charge is Foundational in a Trial.

Copyright Business Recorder, 2024